' MUHAMMAD DAUD KHAN, J.---Convict-appellant, namely, Syed Jehan alias Saidy was tried by learned Izafi Zilla Qazi/Additional Sessions Judge-I, Swat, for the murder of his father-in-law, namely, Akbar Khan, mother-in-law, Sahibzadgai, and causing grievous injury to his sister-in-law, namely, Ulfat. The learned trial Court, vide the impugned judgment, dated 15-3-2012, convicted and sentenced the appellant as under:--
(a) Under section 302(b), P.P.C. The appellant was sentenced to death (on two counts) with fine of Rs. 8,00,000 as compensation under section 544-A, Cr.P.C., to be paid to the legal heirs of both the deceased and in default thereof to undergo S.I. For six months.
(b) Under section 324, P.P.C. The appellant was sentenced to undergo eight (8) years' R.I. With fine of Rs. 30,000 and in default thereof to undergo S.I. For four (4) months.
(c) Under section 337-D, P.P.C. The appellant was sentenced to undergo eight (8) years and to pay Arsh (1/3rd of diyat amounting to Rs. 4,88,333) to injured Mst. Ulfat.
(d) Under section 404, P.P.C. The appellant was sentenced to undergo three (3) years' S.I. Along with payment of fine of Rs.10,000 and in default thereof to undergo one month's S.I.
2. Appellant Syed Jehan filed this Criminal Appeal No. 49 of 2012 against his convictions and sentences whereas the learned Trial Judge has sent a Murder Reference to this Court for confirmation of death sentence of the appellant. We propose to dispose of the instant appeal and Murder Reference by this single judgment.
3. The case of the prosecution is that Gul Hussain complainant lodged a report to police in Casualty Room of Saidu Sharif, Hospital, on 20-1-2011 to the effect that on the eventful night he was asleep in his house, situated in Tahir Abad. At 4-00 a.m. Syed Jehan alias Saiday entered into his house by scaling over the wall through ladder and started giving Chhuri' blows to his parents, namely, Akbar Khan and Mst. Sahabzadgai and his sister Mst. Ulfat, as a result of which his parents died on the spot while his sister received severe injuries. After the occurrence, complainant went out of his house while chasing the accused and saw that one Hazrat Ali was also present for the help of accused. Motive for the occurrence was stated to be that his sister Mst. Farzana was married to accused Syed Jehan some 8/9 years back but due to her strained relations with him, she was sent to his house. The occurrence was witnessed by women folk of his house besides him.
The report of the complainant was recorded in shape of Murasilla Exh.P.W.1/1. Muhammad Anwar ASI (P.W.19) after recording report of the complainant, prepared injury sheets and inquest reports of the deceased as well as injured and, thereafter, dispatched them to doctors. Murasilla was sent to Police Station for registration of the case and, as such, case F.I.R. No. 125 was registered under sections 302/324/404/34, P.P.C. At Police Station Mingora.
4. Women Medical Officer, namely, Farhat Ijaz (P.W.11) conducted the autopsy on the dead body of deceased Sahibzadgai, while Medical Officer Muhammad Fiaz conducted Postmortem examination on the dead body of deceased Akbar Khan on the same date at 8-45 a.m. Dr. Mumtaz Ali also examined Mst. Ulfat and prepared his Medico-legal Report.
5. After registration of case, investigation was entrusted to Tajbar Khan SI (P.W.20), who on receipt of copy of F.I.R., visited the spot, prepared the site plan Exh.PB at the pointation of complainant.
During spot inspection, he collected blood through cotton from the places of deceased and took the same vide memo. Exh.P.W.18/2 and Exh.P.W.18/1 respectively. He also took into possession a blood stained "Churri" as weapon of offence from the roof of Washroom, left by the accused, vide memo. Exh.P.W.18/4. Similarly, he also took into possession a ladder, which was, used by the accused in the commission of offence, vide memo. Exh.P.W.18/5. He further took into possession a cap of accused, vide memo. Exh.P.W.18/6 as well as bulb through which the accused was identified, vide memo. Exh.P.W.18/7. He also recovered an axe thrown by the accused near the house of Shah Kameen, vide memo. Exh.P.W.18/8. On the same day, he received information that accused Syed Jehan was arrested by the Army personnel at Karrakar Check Post and was confined in Army Camp Goranthy. He visited the Army Centre, where the accused was handed over to him along with his belongings, i.e., his blood stained clothes of Fouji colour and "Chhuri" etc. He arrested the accused and also took his belongings, vide memo. Exh.P.W.20/2. Since the accused was injured on his left palm, therefore, the Investigating Officer, prepared his injury sheet and also got him examined through doctor and in this respect, report of the doctor is Exh.P.W.17/1. He also took into possession blood stained garments of deceased and injured, vide memo. Exh.P.W .10/1 and Exh. P. W .10/2 . During investigation the accused confessed his guilt and led the police to the place of occurrence. The accused was, later on, produced before Judicial Magistrate, namely, Azim Ullah Mashwani, (P.W.22), who recorded his confessional statement. After completing investigation, challan the case was submitted in the Court.
6. The appellant was charge sheeted by the learned trial Court to which, he pleaded not guilty and claimed trial. The prosecution produced as many as twenty-three (23) witnesses to prove its case.
The appellant was also examined under section 342, Cr.P.C., who denied the prosecution allegation.
He also denied of having made confessional statement before P.W.22 and claimed to have falsely been implicated in the case. However, the accused did not offer to examine himself on oath. He also did not produce evidence in his defence.
7. Learned trial Court after placing reliance on prosecution evidence on record including judicial confession made by the convict-appellant, convicted and sentenced the appellant as stated to above, hence, the present appeal as well as murder reference.
8. Learned counsel for the appellant-convict argued that there is unexplained two hours delay in lodging of report, therefore, the question of deliberation and consultation cannot be ruled out. He argued that the occurrence took place in odd hours of the night and is unseen. According to him, the occurrence was committed by unknown culprits but Gul Hassain, Mst. Ulfat and Mst. Shaheen have given evidence in favour of the prosecution because of their close relationship with the deceased. He argued that there are contradictions in the ocular account, medical evidence and site plan, therefore the story advanced by the prosecution was not established and the same could not be believed. Learned counsel for the appellant argued that the confessional statement has no legal value because the appellant remained in custody of police for five days and that such a confession is the result of coercion and police torture, therefore, the same is neither voluntary nor true. He argued that denial of the appellant in his statement under section 342, Cr.P.C. From confessional statement amounts to a legal retraction of the judicial confession, therefore, retracted confession cannot be made the basis of conviction. He further contended that the recoveries were planted against the accused by the police by joining hands with the complainant. Lastly, he submitted that the prosecution has miserably failed to bring home the charge against the appellant-convict beyond reasonable shadow of doubt and the learned Trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the accused be acquitted of the charge.
9. Learned A.A.-G. Appearing on behalf of the State and learned counsel for complainant, on the other hand, argued that the appellant is directly charged in the F.I.R. For the brutal murders of his father-in-law, mother-in-law and causing grievous injuries to his sister-in-law which is supported by the confessional statement of appellant coupled with testimony of complainant P.W.1, eye- witnesses, namely, Mst. Ulfat (P.W.2) having stamp of injuries on her person, and Mst. Shaheen (P.W.3), medical evidence, recovery of a "chhuri", an axe, a ladder, blood through cotton from the places of deceased, blood stained garments of the deceased and FSL report coupled with motive.
They submitted that delay, if any, in recording confession can be made the basis for conviction, if the same is found voluntary. They further submitted that the prosecution witnesses were consistent on material particulars; therefore, the conviction is based on proper appreciation of evidence on record and call for no interference.
10. We have carefully perused the record, in the light of above submissions and relevant law.
11. The record reveals that ocular testimony has been offered by complainant Gul Hussain (P.W.1), the son of deceased, Mst. Ulfat (P.W.2), the daughter of deceased, and Mst. Shaheen (P.W.3), the daughter-in-law of the deceased. The contention of learned counsel for appellant is that all the three P.Ws. Are relatives inter se, therefore, their statements are not worthy of credence but his such submission is not convincing one because it has now been settled by the honourable apex Court that interested witness is a person who has a motive to falsely implicate another person, mere relationship of a witness with the deceased was no basis to discard the evidence of such witness.
Reliance is placed on the cases titled Sharafat All v. The State (1999 SCM R 329) and Mu11a Riaz Ahmed v. The State (2002 SCM R 626). No doubt, in the instant case, all the three P.Ws. Are related inter se but fact remains that nothing has been brought on the record that they had ever any or malice and grudge in their mind to become false witnesses and to make false statements. We have examined the testimony of the P.Ws. But found it consistent on material particulars and no contradictions have been found in it. Complainant appeared before trial Court as P. W.1 and has given detailed account of the incident. He has confirmed the contents of F.I.R.
Exh.PA. No doubt, there is two hours delay in lodging of the report as there is one and half kilometer distance between Police Station and place of occurrence but the same is not fatal to the prosecution case because one of the P.Ws., namely, Mst. Ulfat was seriously injured in the incident , therefore, she was taken to DHQ, Hospital, Saidu Sharif, along with the deceased, where the complainant reported the matter to the police, therefore, no delay has been caused by the prosecution in reporting the matter to the police. Admittedly, appellant is the brother-in-law of the complainant Gul Hussain and injured P.W. Mst. Uffat, therefore, no reasonable cause has been established by the defence to indicate why the witnesses would substitute the appellant by leaving real culprits. Similarly, the occurrence took place inside the house where the deceased and the P.Ws. Were living together and occurrence also took place at night time, therefore, presence of the P.Ws. On the spot is natural and their presence on the spot cannot be doubted by any stretch of imagination. Appellant is the brother-in-law of P.Ws.1 and 2, therefore, the parties were knowing each other and the mistaken identity of the appellant, particularly, in the presence of light of 24 volt energy saver bulb cannot be questioned. During cross-examination, the defence has failed to bring anything against the prosecution version or in favour of the appellant. In this situation, we have been persuaded that the P.Ws. Have seen the occurrence and their presence at the place of occurrence has been established.
12. The ocular testimony has also been corroborated by the judicial confession of the appellant recorded by Azim Ullah Mashwani, Judicial Magistrate, (P.W.22), on 24-1-2011. Learned Judicial Magistrate stated before the trial Court that after removing the handcuffs, the Court staff, police officials and Naib Court were sent out of the Court. He disclosed his identity and informed the accused that he was not bound to make confession and if he makes a confession, it will be used against him as evidence. According to certificate Exh.P.W.22/3, accused was given half an hour to think over the matter. Questions mentioned in Exh.P.W.22/1 were put to the appellant by the Judicial Magistrate and thereafter when he was satisfied that the accused wants to record his confession voluntarily, without any duress or coercion then he recorded the confessional statement and after completing all the legal formalities, the appellant signed the confessional statement. There is no cavil with the legal proposition that while evaluating the confessional statement main object of law is to ensure the voluntariness and truthfulness of the statement. If a statement is found to have been made voluntarily, without duress, coercion and inducement and simultaneously rings true, there is no hurdle to accept the same irrespective of delay (if any), if recorded B within the period of legal physical remand with police. No doubt, there is delay in recording of confessional statement for about (3) days and the same has also been retracted by the appellant in his statement under section 342, Cr.P.C., but mere delay in recording the confessional c statement or subsequent retraction by the accused from his confessional statement, by itself, is not sufficient to affect its validity because it has now been settled that conviction can be based on confession alone even though retracted, if the same is found to be true and voluntary. Reliance is placed on the case titled Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others (2001 SCM R 988).
Regarding delay in recording confessional statement, honourable, the Supreme Court, in a case titled Muhammad Ismail and another v. The State reported (1995 SCM R 1615) it has been held that delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntary. Similarly, in a case titled Muhammad Amin v. The State (PLD 2006 Supreme Court 219) it has been held by the honourable, apex Court that confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of conviction of its maker, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercion or inducement. It has further been held by honourable Supreme Court in a case titled Majeed v. The State (2010 SCM R 55) that no doubt there was delay of 12 days in recording the confession but this, by itself, is not sufficient to discard the same. In the present case, the Magistrate, who recorded the confessional statement, deposed that he has recorded the confession after observing all legal formalities. Nothing favourable to accused was brought on record during cross-examination that the confession was either as a result of coercion and torture of police or inducement. Even the appellant has not specifically stated in his statement under section 342, Cr.P.C., that confessional statement was obtained through coercion, torture, physical or mental inducement and only made simple denial from the confessional statement.
13. The story of prosecution has also been supported by statements of Ibrahim (P.W.4), the Manager of Salateen Hotel and Muhammad Jan, (P.W.5), the Manager of National Hotel, Mingora, where the accused had stayed and booked a room coupled with the statements of Fazal Karim (P.W.6) and Fazal Haq (P.W.8), the shopkeepers, from whom the appellant had purchased the ladder, "Chhuri" and an axe.
14. Besides the above, the story of prosecution and confessional statement of the appellant is further corroborated by the medical evidence. Lady Dr. Farhat Ijaz (P.W.11), who conducted autopsy on the dead body of deceased Mst. Shahzadgai, found an incised wound 1-1/2 inch longitudinally on left side of body 2 inch below the left breast, penetrating into the abdomen with profused bleeding. She also found an incised wound 1-1/2 inch in length below the right breast 2 inch below the right breast penetrating into the abdomen with profused bleedings along with an incised wound 1/2 inch on left breast. She further found an incised wound at the epigastric region 1-1/2 inch penetrating the abdomen. In her opinion, the probable cause of death was shock due to severe bleeding. Similarly, Dr. Muhammad Fiaz (P.W.14), who conducted postmortem examination on the dead body of deceased Akbar Khan, found seven incised wounds on the person of deceased and in his opinion the deceased was died due to injury to vital organs, specially heart and blood vessels with extensive blood loss. Dr. Mumtaz Ali Shah (P.W.13), who examined the injured P.W. Mst. Ulfat, also found a stab wound measuring 3 to 5 c.m. In size above the umblicus protruding of intestine.
He declared the nature of injury as dangerous. The defence remains failed to bring anything in his favour from the testimony of the doctors. The ocular account and confessional statement are in consonance with the medical evidence.
15. The case of prosecution was further supported by the recovery of blood stained "chhuri", an axe, a ladder, blood through cotton from the places of deceased, blood stained garments of deceased and injured and its positive reports Exh.P.W.20/6 and Exh.P.W.20/21. Motive of the occurrence as advanced in the F.I.R. Has also been established. Mst. Farzana, the wife of deceased, appeared as P.W.7, who admitted the strained relation with her husband, the appellant, therefore, the motive set up by the prosecution would appear to be suitable in the given facts and circumstances of the case.
' After examining the entire evidence, we are confident that the prosecution has been able to bring home the guilt against the appellant. The trial Court after proper appreciation and analysis of the material available on record has rightly found the appellant guilty of the offence, thus, the findings so arrived at and, the conclusions so drawn are proper, legal, justified and need no interference, therefore, the appeal is dismissed.
16. Now coming to the Murder Reference, the perusal of the record reflects that the appellant has committed a cold-blooded murder of two innocent, armless, helpless and defenceless persons, consisting of his father-in-law and mother-in-law by causing them several serious injuries on vital parts of their bodies besides causing severe injuries to his sister-in-law at the odd hours of the night. The appellant has committed the offence with planning, deliberately and in brutal manner, therefore, he is not deserved for any leniency. Wisdom is also sought from the case titled Miss Najiba and another v. Ahmad Sultan alias Sattar, supra, wherein it has been held as under:-- ----Sentence in offences punishable with death---When prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minded people---Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice, whereas the Courts are duty-bound to do complete justice with both the parties---Whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves---Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties---In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where mitigating or extenuating circumstances are available for warranting lesser punishment, Courts while awarding lesser punishment, have to record reasons justifying the same.
' Further we are supported by the dictum laid down in case titled Nabi Bakhsh v. The State and another (1999 SCM R 1972), Bismillah v. Jabbar (1998 SCM R 862), Pervez v. The State (1998 SCM R 1976) and Muhammad Tahir Aziz v. The State (2010 PCr.LJ 1787).
In the present case, there is no extenuating or mitigating circumstance to justify the commutation of the sentence. The appellant has committed a cold-blooded murder of two innocent persons, therefore, in our considered opinion, the trial Court has rightly passed the normal sentence, which requires to be confirmed. Consequently, the instant appeal is dismissed. The Murder Reference is answered in affirmative and the death sentence awarded to the appellant by the trial Court is confirmed.